8. Federal Environmental Laws
Clean Air Act (CAA)
Clean Water Act (CWA) (original title: Federal Water
Pollution Control Amendments of 1972)
Comprehensive Environmental Response, Compensation
and Liability Act (CERCLA, or Superfund)
Emergency Planning and Community Right-to-Know Act
(EPCRA)
Endangered Species Act (ESA)
National Environmental Policy Act (NEPA)
Oil Pollution Act (OPA)
Resource Conservation and Recovery Act (RCRA)
Safe Drinking Water Act (SDWA)
Toxic Substances Control Act (TSCA)
9. Mississippi Environmental Laws
Mississippi Air and Water Pollution Control Law –
Miss. Code Ann. § 49-17- 1 through § 49-17-43
Environmental Self-Evaluation Reports – Miss. Code
Ann. § 49-2-71
Solid Waste Disposal Law of 1974 – Miss. Code Ann. §
17-17-1 through § 17-17-67
Disposal of Waste Tires and Lead Acid Batteries;
Right-Way-to-Throw-Away Program – Miss. Code
Ann. § 17-17-401 through § 17-17- 445
Mississippi Nongame and Endangered Species
Conservation Act – Miss. Code Ann. § 45-5-1 et seq.
10. Miss. Enviro Laws – cont.
Mississippi Brownfields Voluntary Cleanup and
Redevelopment §49-35-1
Mississippi Underground Storage Tank Act of 1988
§49-17-401
Lead-based Paint Activity Accreditation and
Certification Act §49-17-601
11.
12. All Appropriate Inquires (AAI)
ASTM Standards
E 1527-13 Phase I ESA (-05 allowable until Oct. 2015)
E 1528-00 Transaction Screening
E 1903-07 Phase II Site Assessment
E 2247-08 Phase I ESA for Forests and Rural Property
Remember these reports “expire”
13. Phase 1 ESA
By an “Environmental Professional”
Past and present owners
Historical resources – aerials, title, sanborn’s
Government records
Consultant reliance on EDR
Site inspections
15. Pending ASTM revisions
What is a REC (HREC - historical, CREC - controlled)
What is sufficient records review
Vapor intrusion issue
16. Types of Purchasers (CERCLA)
Innocent Landowner
No prior knowledge of contamination
Bona Fide Prospective Purchaser
Purchase with knowledge but not responsibility
Contiguous Property Owner
Adjacent to contamination
Indicia of Ownership
Holds property to protect security interest
17. Maintaining Protection -
Continuing Obligations
Compliance with land use restrictions
Allow access by agencies
Stop continuing releases
Prevent future releases
Prevent or limit exposure
18. PCS Nitrogen Inc. v. Ashley II of
Charleston, 2013 WL 1340018
(4th Circuit) April 4, 2013
43 acre site
First used in 1884 as phosphate fertilizer plant
Several owners over the years
9 PRP’s
19. RHCE – Innocent Landowner
Defense
Purchased 2 acres of the property in 1990
Excavated pond in 1991
Installed more sewer and water lines
Removed 6 inches of topsoil and graded land
20. Innocent Landowner Defense
(42§9607(b)(3))
Must show –
1. another party sole cause of contamination
2. PRP did not cause release in contractual connection
with defendant
3. defendant exercised due care
21. RHCE – Defense Failed
Lower court found all three pongs were not met
RHCE argued it met prongs one and two – court held
need all three prongs
22. Ashley - Bona Fide Prospective
Purchase Defense (42§9601(40))
Purchase 27 acres in 2003 with knowledge of
contamination
Time of purchase contaminated soil was exposed
After commencement of this action purchased
additional 3 acres
Incurred $194,000 for investigation and response costs
23. Ashley - BFPP
Must meet –
1. disposal prior to purchase
2. All appropriate inquires
3. Notice
4. Care
5. Cooperation
6. compliance with institutional controls
7. Complies with requests
8. not affiliated with PRP
24. Ashley
Level of Care – “reasonable steps”
Stop continuing release
Prevent future releases
Prevent or limit exposure
Ashley wanted lower level of care from innocent
landowner defense
But court suggests the care should higher for BRPP
25. Ashley – Defense Fails
Failed to clean sumps after conducting demo at site
Did not monitor conditions
Allowed contamination to be exposed to surface
26. Holcombe and Fair
Purchased the site in 1985
Aware of contamination in 1990
Both impacted contaminated areas and protected
areas
Subdivided property to several owners
27. Holcombe and Fair
Evidence of site grading (of known contaminated
areas)
Became PRP for secondary disposal by moving
contaminated soils on and about the site
28. Attorney Role in AAI Process
Consultant selection and oversight
32. Environmental Consultant
Selection
Experience (of field staff and PM)
Insurance terms
Contract terms (indemnifications and limitations to
contract values)
State and local knowledge
33. What other roles for the Attorney ?
Report review (review draft and final)
Transaction contract terms
Indemnification terms
Financial assurance methods (insurance, letter of
credit, deposits
Communications with MDEQ (if necessary)
39. Strategies to Protect Buyer
Current Phase I ESA and Phase II if necessary
Indemnifications
Financial assurances
Reps and Warranties
MDEQ involvement
If existing contamination – confirm planned site usage
fits with continuing obligations/institutional controls
40.
41. Brownfields Protections
CERCLA §9601(39) – real property “complicated” by
the presence or potential presence of contamination
Mississippi §49-35-1 to 27
Property where use is limited as a result of “actual or
potential” contamination – or the “perception” of
contamination
42. Brownfield Benefits/Limitations
All property owners directly impacted included
No liability to all persons (not EPA) for clean ups costs
Section 49-35-14(l)
Does NOT include other damages
So what about EPA enforcement ?
43. Protection from EPA Enforcement
EPA letter to MDEQ: CERCLA Section 128(b)(1)
enforcement bar
Bars federal enforcement if State Program is sufficient
Three exceptions –
State requests assistance
Multi-state site (contamination across state line)
Immediate action necessary
44. Mississippi
Brownfields
2012
Brownfield Site Name - Location
1 Amoco/AFTA - Natchez
2 Arizona Chemical – Picayune
3 CECO Building Systems – Columbus
4 City Center – Ridgeland
5 Colle Towing – Pascagoula
6 Copiah Co. MECO Property - Gallman
7 Emerson Appliance Motors Div. - Oxford
8 DeSoto Co. School Bus Lot – Hernando
9 Fabra Care Master Dry Cleaner – Jackson
10 Gautier Oil – Gautier
11 Intex Plastics/Hatco Plastics – Corinth
12 Mound Plantation Red Barn – Rolling Fork
13 Nashville-Ferry Rd/Glenn Springs - Columbus
14 National Picture & Frame/Uniek - Greenwood
15 One Hour Cleaners – Starkville
16 Pennzoil-Quaker State – Vicksburg
17 Pilot Travel Center – Richland
18 Swifty Serve #542 – Moss Point
19 Tupelo Fairgrounds/Longs Laundry – Tupelo
20 W.R. Grace Solvent Waste Site - Corinth
21 West Manufacturers Blvd. - Brookhaven
22 Whirlpool Corp. - Oxford
23 Wolverine Tube - Greenville
1
2
3
4
5
6
7
8
9
11
10
12
1314
15
16
17
18
19
20
21
22
23
45. Brownfield – risk
No protection from third party lawsuits
Common Law Claims
Trespass – past and continuing
Nuisance – public and private
Negligence – and gross negligence
Strict liability
46. Blackard v. Hercules, Inc.
2014 WL 3549929 S.D. Miss
Private Nuisance and Trespass
Ashland not liable for the failure to correct Hercules
wrongs
Negligence
Possessor or controller of land not liable for prior acts of
the current owner
Remediation and Restoration Costs
Only recover restoration costs if less than the
diminution value
47.
48. Wetlands – Permitting
Section 401 Water Quality Certification (MDEQ)
Coastal counties need to also obtain permit from
Mississippi Department of Marine Resources
Section 404 Permit (Corps of Engineers)
Vicksburg/Mobile/Memphis
49. Why is there still confusion over
wetlands?
Rapanos v. United States, 547 U.S. 715 (2006)
(Plurality decision)
Three tests
Kennedy – “Significant nexus” test (with waters of the US)
(biological, chemical, physical)
Scalia – Relatively permanent connection test (flow) with
waters of the US
Dissent – Corps’ reasonable interpretation
53. Sackett v. EPA
EPA claimed violations of Clean Water Act –
“discharge of pollutants from a point source” CWA 301
and 502
“discharge of pollutants into waters of the US without a
permit” CWA 301
54. EPA issued a compliance order demanding Sacketts
remove all fill placed on the lot
Sacketts requested a hearing from EPA but were
denied
EPA did not consider the compliance order a final and
appealable action
By not acting the Sacketts were accruing a $75,000 a
day liability ($37,500 – CWA violation, $37,500 – Order
violation)
Sackett v. EPA
History
55. Scalia Opinion
• APA action acceptable under CWA when no
other remedy available
• Is a compliance order a “final agency action” –
ripe for appeal ?
• YES
• How will decision impact agency enforcement
approach ?
Sackett v. EPA
56. Jurisdictional Determinations
5th Circuit and 9th Circuit have held that a
jurisdictional determination is not reviewable final
agency action under the Administrative Procedure Act
and therefore not eligible for judicial review
8th Circuit held that courts may review the Corps'
approved jurisdictional determinations about whether
a water body is subject to its authority.
57. EPA and Corps of Engineers
Revisions to the regulatory definition of “Waters for
the US” became effective - May 27, 2015
58. According to EPA the Rule does:
Clearly defines and protects tributaries that impact the health of
downstream waters.
Provides certainty in how far safeguards extend to nearby waters.
Protects the nation’s regional water treasures.
Focuses on streams, not ditches.
Maintains the status of waters within Municipal Separate Storm
Sewer Systems.
Reduces the use of case-specific analysis of waters.
59. According to EPA - Rule does not:
Protect any types of waters that have not historically been
covered by the Clean Water Act.
Add any new requirements for agriculture.
Interfere with or change private property rights.
Regulate most ditches.
Change policy on irrigation or water transfers.
Address land use.
Cover erosional features such as gullies, rills and non-
wetland swales.
Include groundwater, shallow subsurface flow and tile
drains
67. Markle Interests, LLC v. USFWS
(5th Circuit Appeal filed)
USFWS designated 1600 acres as refuge the
endangered dusky gopher frog
Weyerhaeuser and a group of similar landowners are
appealing a Louisiana federal judge's decision
rejecting their challenges, USFWS claiming land was a
"critical habitat" that could be used to revive a species
close to extinction, under the ESA.
68. Designation of Critical Habitat of
Dusky Gopher Frog (June 12, 2012)
Approximately 4,933 acres are designated as critical
habitat in Forrest, Harrison, Jackson, and Perry
Counties, Mississippi
69.
70. USFWS: “public lands alone are insufficient
to ensure long-term survival of the species”
71. “Endangered frogs find home in
Jackson Co.” – “Workers at refuge in Gautier
have released hundreds since May” – Clarion Ledger June 15, 2015
“We are taking an existing population of the frogs from
Saucier in Harrison County and repopulating them
elsewhere,”
“By bringing the frogs to Jackson County, we now have
two critically endangered species on our South
Mississippi refuge — we also house the endangered
Mississippi sandhill crane.”
72.
73. Northern Long-eared Bat
Interim 4(d) Rule
Has a northern long-eared bat maternity roost tree or
hibernacula been documented on or near the project
area?
trees that northern long-eared bats have been
documented as using during the active season
(approximately April – October). Once documented, a
tree will be considered to be a “known roost” as long as
the tree and surrounding habitat remain suitable for
northern long-eared bat.
75. No federal or Mississippi limits for IAQ or mold – But,
Lumber Liquidators – laminate wood flooring from China,
exceeded World Health Organizations limits
(lawsuits, federal investigations, and possible
criminal charges)
76.
77. New agency focus
Exposure path – soil vapor intrusion
Both MDEQ and EPA include a review of the issue for
most sites
79. Soil Vapor Intrusion
No formal exposure limits
State will follow recommended levels or can conduct
risk study
Remediation options
Existing structures
Vapor collection systems
HVAC pressure control
New Construction
Vapor collection
Slab membrane or sealers
86. 2013 revisions to Mississippi Economic Redevelopment Act
(§57-91-1) – now includes all brownfields within the MDEQ
program.
Credit for remediation and investigation costs
Up to a ten year period a percentage of taxes and fees are
credited to developer - limited to 2 ½ times the amount of the
allowable remediation costs.
